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Citing no ‘scientific proof that LGBTQ people are born that way,’ Kenya’s High Court unanimously upholds law criminalizing gay sex

A woman wearing a rainbow flag walks between Christian members of the Sozo church of God as they hold anti-LGBTQ signs and sing against homosexuality after a verdict on scrapping laws criminalising homosexuality in front of the Milimani high court in Nairobi, Kenya, on May 24, 2019. - Kenya's high court, in a much-awaited verdict, refused to scrap laws criminalising homosexuality, fearing this would lead to same-sex marriage which it said was unconstitutional. "We find the impugned sections (of the penal code) are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition," said presiding judge Roselyne Aburili. (Photo by Yasuyoshi CHIBA / AFP) (Photo credit should read YASUYOSHI CHIBA/AFP/Getty Images) (YASUYOSHI CHIBA/Getty)

Kenya’s High Court decided Friday that a 19th-century law that makes gay sex a crime doesn’t violate the country’s constitution.

Section 162 of Kenya’s penal code criminalizes “'carnal knowledge against the order of nature and indecent acts between males whether in public or private," which is commonly viewed as anal sex, a crime that is punishable by up to 14 years of imprisonment. Section 165 of the same statute punishes by up to five years any sexual practices between men.

Critics say that the colonial-era laws are in direct conflict with the country’s new constitution, which was signed into law in 2010, and granted “equal protection” to all.

In 2018, three human rights organizations brought to the country’s high court two lawsuits challenging the constitutionality of sections 162 and 165.

“The petitioners want the High Court to declare that the sections of the Penal Code discriminate against members of the LGBTQI community. By discriminating against members of the LGBTQI community, these laws violate the constitution,” a statement released by the Repeal162.org collective stated.

On Friday, a three-judge bench unanimously voted to upheld the penal code ruling, ruling that the laws in question were not unconstitutional.

“We find the impugned sections (of the penal code) are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition,” said Roselyne Aburili, presiding over a three-judge bench, according to Yahoo News.

She added that there was “no conclusive scientific proof that LGBTQ people are born that way,” and that decriminalization would lead to “same-sex persons living together as couples.”

Following the ruling, U.N. High Commissioner for Human Rights Michelle Bachelet expressed her disappointment at the court’s decision.

“Criminalizing acts targeting certain individuals based on who they are and whom they love is inherently discriminatory. It also sends a dangerous signal to broader society and encourages hostility and even violence against LGBT individuals,” Bachelet said in a statement.

“Denial of rights to education, healthcare, housing and employment can all be traced to the criminalization of same sex relationships.”